Department Circular No. 2002-07-004
RULES OF PRACTICE AND
PROCEDURE BEFORE THE DEPARTMENT OF ENERGY
Pursuant to the provisions of Section 5 (k) of
R.A. 7638, otherwise known as the
Department of Energy Act of 1992, in compliance with
Executive Order No. 26 dated 7 October 1992, and in line with Department
Special Order No. 2000-07-016, dated 13 July 2000, the following Rules of
Practice and Procedure are hereby adopted and promulgated:
PART I GENERAL PROVISIONS
RULE 1
Title, Definition, Scope and
Construction
Section 1. Title of Rules These Rules shall be known
as the Rules of Practice and Procedure of the
Department
of Energy.
Section 2. Definitions For purposes of these Rules, the terms:
(a) Department shall refer to the
Department of Energy.
(b) Deregulation Act shall refer to the Downstream
Oil Industry Deregulation Act of 1998.
(c) Director
shall mean the Director of the Office of the Legal Counsel.
(d) EPIRA shall refer to
Republic Act No. 9136, otherwise known as the Electric Power Industry Reform Act of 2001.
(e) Energy Act shall refer to
Republic
Act No. 7638, the
Department of Energy Act of 1992.
(f) OLC shall mean the Office of the Legal Counsel of the
Department of Energy.
(g) Public Service Act shall refer to
C.A.
No. 146, as amended.
(h) Rules
shall refer to these Rules.
(i) Secretary shall refer to the Secretary
of Energy.
Section 3. Scope These rules shall govern all pleadings, practice and
procedure before the
Department in all
matters concerning inquiry, investigation, hearing, study and/or any other
proceedings conducted by the
Department in
the hearing, study and/or any other proceedings conducted by the
Department in the performance of its
functions. However, in the public
interest and consistent with due process, the
Department
may, in any particular matter, except itself from these rules and apply such
fair and reasonable procedures to assist the parties to obtain speedy
disposition of cases.
These rules shall likewise cover applications for
the issuance of permits or other forms of authorization to entities involved in
the supply and distribution of energy resources.
Section 4. Construction These rules shall be
liberally construed in order to protect and promote public interest and attain
the objectives of the
Public Service Act, the
Energy Act, the
Deregulation Act,
the
EPIRA and any other law,
statute, executive order or decree that is being, or may hereafter be,
implemented by the
Department in the most
speedy and inexpensive disposition of cases. In the broader interest of
justice and to avoid unnecessary delay, the
Department may resort to summary proceedings
in cases hereinafter provided.
Section 5. Suppletory Application of the Rules of
Court of the Philippines. In the absence of any applicable provision
in, and provided they are not inconsistent with these Rules, the pertinent
provisions of the Revised Rules of Court of the Philippines may, in the
interest of expeditious disposition of cases and whenever practicable and
convenient, be applied by analogy or in a suppletory
manner.
RULE 2
PARTIES
Section 1. Who may be a Party Any person or group of persons whether natural
or juridical, who may be affected by the decision to be rendered by the
Department in a particular case may be a
party and may appeal, and participate in the manner hereinafter provided.
Section 2. Applicant An applicant is any person who applies with the
Department for a permit for the operation of
services involved in energy resource supply activities
or who seeks any other form of authorization, to undertake any matter or
business that is within the jurisdiction of the Department.
Section 3. Complainant A complainant is any aggrieved person who files a
complaint against another party for legal redress on matters within the
jurisdiction of the
Department.
Section 4. Petitioner A petitioner is any person who files an application
with the
Department ex parte, or where
there are no parties in opposition, praying for the exercise of the powers of
the
Department, for authority to do some
act which requires the sanction of the
Department.
Section 5. Respondent A respondent is any person
or party, who may or may not be a holder of a permit or other form of
authorization to whom an order is issued by the
Department
to appear or give his explanation in writing, or who is otherwise summoned to
answer any allegation, imputation or issue in any case, hearing or proceeding
cognizable by the
Department, or any
person who may also hearing or proceeding cognizable by the
Department, or any person who may also be
adversely or is otherwise affected by a complaint or petition.
Section 6. Oppositor An oppositor is any person who interposes any objection
against the approval of an application or petition.
RULE 3
PLEADINGS
Section 1. Pleading The pleadings allowed by these Rules are the
application, the complaint, the petition, the opposition, the answer, and such
further pleadings as the
Department may
allow.
Section 2. Form of Pleading, Copies All pleadings filed with the
Department must be in triplicate and
typewritten or printed on legal size bond paper and
shall be in English. Every pleading shall
contain the names and addresses of all the parties, the
Department file number and designation of the
pleading.
Section 3. Application By means of an application
or petition for permit or other forms of authorization, the applicant seeks for
authorization or permission to undertake any matter within the power of the
Department under the
Public
Service Act, the
Energy Act, the
Deregulation
Act, the
EPIRA or any
other law, statute, executive order or decree that is being, or may hereafter
be, implemented by the Department, stating the ultimate facts on which the
relief sought is based.
The
Department will refer to the proper
bureau or office the evaluation of the technical and financial qualifications
of an applicant for a permit or other forms of authorization.
Section 4. Complaint A complaint is a concise statement of the ultimate
facts constituting the acts or matters complained of, and shall specify the
relief sought. The names and addresses
of the complainants and the respondents must be stated
in the complaint, and whenever practicable, the date and place of the
commission of the alleged act or omission complained of.
Section 5. Petition A petition is an application made to the
Department
ex parte or where there are no parties in opposition, praying for the
exercise of the powers of the Department for authority to do some act which
requires the sanction of the
Department
.
Section
6. Opposition
An opposition is a pleading filed by an oppositor against the grant of an
application or petition in which the oppositor states his right or interest affected
by the application or petition and the ultimate facts constituting all his
grounds for opposition.
Section
7. Answer
An answer is a pleading in which the respondent sets forth the defense upon
which he relies. The respondent to whom
an order is issued by the
Department
to show cause or against whom a complaint or petition is filed, shall file an
answer within ten (10) calendar days from receipt of the order, complaint or
petition, order, complaint or petition.
Section
8. Verification
All pleadings filed with the
Department
must be verified and accompanied by such documents as would reasonably tend to
establish prima facie the truth of the factual allegations thereof.
Section
9. Service
Service may be by personal delivery or by registered mail, properly addressed
to each party, together with all annexes attached thereto. All pleadings and motions submitted to the
Department
for filing must show proof of service thereof upon all parties to the case.
Section
10. Service upon Parties Represented by Counsel
When any party is represented by counsel, service shall be made to his
counsel of record.
Section
11. Contents
of Pleadings All pleadings filed with the
Department
must state clearly and categorically the ultimate facts upon which the pleader
relies. Pleadings shall contain a prayer
for the principal relief sought and may also add a general prayer for such
further or other reliefs as may be deemed just and equitable.
Section
12. Amendments
Any modification or supplement to an application, complaint, petition or
other pleadings shall be deemed as an amendment and must comply with the formal
requirements of pleadings as mentioned in these rules.
Section
13. Amendment
when Allowed Amendments may be made as a matter of right at any time
before any responsive pleading is filed and, thereafter, only with leave of the
Department.
Section
14. Defect
of Form No defect in the form of any pleading allowed to be filed under
these Rules will prejudice the pleader; however, the
Department
may direct amendments or require the submission of additional affidavits or
supporting documents.
Section
15 Filing Fees The Treasury Division of the Administrative Services Unit of
the
Department
shall receive, collect or take the following fees:
a. For filing a complaint P 10,000.00;
b. For filing an appeal P 10,000.00;
c. For certified copies of any paper, record,
judgment P 10.00 per page;
d. For filing an application for the grant of
permit or other form of authorization to construct, install, own, operate and
maintain pipeline system to transport energy resources P 10.00 per meter of
pipeline.
RULE
4
MOTIONS
IN GENERAL
Section
1. Scope
& Contents Every application for any procedural or interlocutory
ruling or relief may be made through a motion.
Motions shall state the relief sought and the grounds therefor and, if
necessary, shall be accompanied by supporting affidavits and documents. Motions shall be in writing and copies
thereof shall be served upon all parties at least three (3) days before the
hearing thereof. All written motions
shall specify the date and time for the hearing thereof.
Section
2. Provisional
Permit or Authorization Motions praying for the issuance of a provisional
permit or other form of authorization to operate must be in writing and
accompanied by affidavit(s) of merit and other supporting documents showing the
necessity of the relief prayed for, together with proof of service to the other
party. Such motions shall be governed by
Rule 15 hereof.
PART
II PROCEDURE IN APPLICATIONS
RULE
5
APPLICATION
Section
1. How
Commenced Any proceeding the object of which is to obtain a permit or any
form of authorization under the
Public
Service Act, the
Energy
Act, the
Deregulation
Act, the
EPIRA and/or any other
law, statute, executive order or decree that is being, or may hereinafter be,
implemented by the
Department shall be commenced by the
filing of the corresponding application.
Section
2. Contents
The application shall contain a concise statement of the service proposed or
permit or authorization applied for, and the ultimate facts that would qualify
or entitle the applicant to the grant of the permit or authorization. When the application is predicated on a
permit or other form of authorization, sale, lease, mortgage or any other
contract, such permit or authorization or contract shall be impleaded in the
application by alleging in substance its salient provisions and appending to
the application a copy of the permit or authorization, contract or pertinent
document.
RULE
6
NOTICE
OF APPLICATION
Section
1. Issuance
of the Notice After the filing of the application, it shall be docketed,
and the hearing officer/s duly designated by the
Department
shall issue a notice that such application has been filed with the
Department
and furnish the list of affected parties, if any, to the applicant.
Section
2. Publication
and Service The applicant shall cause the aforesaid notice, at his own
expense, to be published once in one (1) newspaper of general circulation in
the Philippines at least ten (10) calendar days before the date of the
proceeding; provided, that if an application covers only one (1) region,
publication in the local newspaper circulated within that region is
sufficient. The applicant shall also
serve copies of the notice, with copies of the application, to the affected
parties, as furnished by the
Department.
RULE
7
OPPOSITION
Section
1. Contents
Within ten (10) calendar days from receipt by the affected party of the
notice referred to in Section 1 Rule 6 hereof, a written opposition, not a
motion to dismiss, may be filed against an application with copy served upon
the applicant, in which the oppositor shall state concisely his right of
interest affected by the application and the ultimate facts constituting all
his grounds for opposition.
PART
III PROCEDURE IN COMPLAINTS AND PETITIONS
RULE
8
COMPLAINTS
& PETITIONS
Section
1. How
Commenced Any action, the object of which is to subject a holder of a
permit or authorization or any person operating without authority from the
Department
to any penalty that may be imposed, or other measure that may be taken in the
public interest by the
Department for violation by such holder or
any person of the provisions of the
Public Service Act,
the Energy
Act, the
Deregulation Act, the
EPIRA
or any other law, statute, executive order or decree that is being, or may
hereinafter be, implemented by the
Department,
or the terms and conditions of his certificate or any order, decision or
regulations of the
Department
shall be commenced by the filing of a complaint or petition.
Section
2. Sufficiency
of Complaint or Petition A complaint or a petition is sufficient if it
contains the name of the complainant or offended party, the name of the
respondent, a reference, whenever practicable, to the provisions of the law,
statute, executive order or decree being implemented by the
Department
or the permit or authorization, order, decision or regulation violated; the
acts or omissions complained of as constituting the offense, and the date and
place of the commission of the offense.
Section
3. Separate
Allegations Whenever two or more offenses are charged in one (1)
complaint or petition, each offense must be separately alleged.
RULE
9
MOTU
PROPRIO ACTIONS
Section
1. Institution
of Action by the
Department
The
Department
may motu proprio initiate an action or inquiry against any person or
entity when so required by law, public or national interest, and/or in its
exercise of any of the powers vested upon it.
In the exercise thereof, the Department may commence such hearing or
inquiry by an order to show cause, setting forth the grounds for such order.
Section
2. Other
Instances When the basis of a motu proprio action is a violation
of
Department
orders, rules or regulations, the order shall allege with definiteness and
clarity, the violation and also the range or extent of the sanction that may be
imposed should the violation be substantiated.
RULE
10
ANSWER
Section
1. Answer
Within a period of ten (10) calendar days from receipt of a motu
proprio order or a copy of the petition or complaint, the respondent
shall file an answer whether admitting or denying the material allegations or
facts set forth in said motu proprio order, petition or
complaint, or setting forth the reason why respondent cannot admit or deny said
allegations. The pleader must state the
facts and law upon which he relies for his defense with definiteness and
clarity.
RULE
11
MOTION
TO DISMISS
Section
1. Grounds
No motion to dismiss shall be entertained unless such motion is incorporated
in the answer of the respondent under any of the following grounds:
(A)
The facts alleged in the complaint or motu proprio order do not
constitute a violation of the
Departments
rules and regulations or do not entitle the complainant or petitioner to the
relief sought.
(B)
The
Department
has no jurisdiction over the nature of the case or controversy.
(C)
The applicant has not complied with the jurisdictional requirements of an
application.
PART
IV PROCEEDINGS BEFORE THE DEPARTMENT
RULE
12
PRE-HEARING
CONFERENCE
Section
1. Pre-Hearing
Conference After the answer or the opposition has been filed, the hearing
officer/s duly designated by the
Department
shall issue notice to all the parties to appear for a pre-hearing conference to
consider:
(A)
The possibility of an amicable settlement in cases that may be compromised;
(B)
Simplification of the issues through stipulation of facts and/or admission,
including admissions of documents and their authenticity; and
(C)
Such other matters as may aid in the just, speedy, and inexpensive disposition
of the case.
Section
2. Failure
to Appear All parties and their counsels, if any, shall attend the
pre-hearing conference with full authority to enter into an agreement on any
and all matters necessary to expedite the proceedings. The
Department
may, in case of failure to appear on the part of a party and his counsel, issue
an order of default against the absent party, and, thereafter, the hearing
officer/s may receive evidence ex parte.
Section
3. Amicable
Settlement When an amicable settlement is reached as provided under
Section 1 (A), Rule 12 hereof, it shall be reduced to writing duly signed by
the parties. Such compromise agreement
shall then be the basis of an order or decision of the
Department.
Section
4. Nature
of Proceedings The proceedings before the
Department
shall be non-litigious in nature.
Subject to the requirements of due process, the technicalities of law
and procedure and the rules obtaining in the courts of law shall not strictly
apply thereto. The
Department
may avail itself of all reasonable means to ascertain the facts of the controversy
speedily, including ocular inspection and examination of well informed persons.
Section
5. Postponement
Postponement or continuance of hearing may be granted only on highly
meritorious grounds provided that no more than two (2) postponements or
continuances shall be allowed.
RULE
13
SUMMARY
PROCEEDINGS
Section
1. Cases that may be the subject of
summary proceedings are:
(A)
Non-Contested Cases When there is
no opposition filed against an application or no answer has been filed against
a complaint or petition or when the opposition or the answer filed fails to
tender an issue, the
Department
may conduct summary proceedings.
(B)
Contested Cases When the opposition
or the answer does not contest the material allegations of the application or
the complaint for violation of
Department
rules and regulations, respectively, although affirmative defenses are stated
therein, the
Department
may conduct summary proceedings.
(C)
Applications All applications for
permit or other forms of authority to engage in business in the petroleum
industry in whatever capacity, or classification may be conducted through
summary proceedings.
Section
2. Summary
Proceedings, How Conducted After the time for filing an answer has
expired and none has been filed or after the issues have been joined by the
filing of the answer or the opposition, and the hearing officer/s shall have
determined that the case is one which may be the subject of summary proceedings
under Section 1 of this Rule 13, the hearing officer/s shall summon the
proceedings under Section 1 of this Rule 13, the hearing officer/s shall summon
the parties to appear before him/them and require the parties to bring all
documentary evidence that they may have in support of their claims or defenses.
Section
3. Offer
of Exhibit/Documentary Evidence The complainant, the petitioner or
applicant shall submit all documentary evidence he may have which shall be
authenticated before the hearing officer/s and marked as exhibits; then the
respondent, or the oppositor shall submit counter documents or affidavits which
shall be authenticated before the hearing officer/s as exhibits after which the
parties shall formally offer their respective exhibits in the same order,
stating the purposes for which they are offered. After the formal offer of evidence, the hearing
officer/s may propound clarificatory questions on the documents presented and
may require the submission of position papers or memoranda.
Section
4. Submission
of Memorandum, Position Paper, etc.
In order to expedite resolution of the case, the hearing officer/s may require
the parties to submit, in addition to the memoranda, position papers or last
pleading required of them, a draft of the decision they seek, stating clearly
and distinctly the facts and the law or rules and regulations upon which it is
based. Following the termination of the
hearing and the submission by the parties of the required memorandum and draft
of the decision they seek, the Department may, after considering and appreciating
the applicable laws, rules and regulations and the evidence submitted, adopt,
in whole or in part, either of the parties draft decision or reject both.
RULE
14
POWERS
AND DUTIES OF HEARING OFFICER/S
Section
1. Powers
and Duties The hearing officer/s shall have the following powers and
duties:
(A)
To administer oaths and affirmations;
(B)
To receive evidence and rule on the admissibility of evidence as to relevance,
materiality or competence of such evidence.
Section
2. Period
to Decide Case Should the hearing officer/s determine that the case
cannot be heard by summary proceedings, he/they shall inform the Secretary who
shall then issue an order setting the case for hearing, which hearing shall be
terminated within sixty (60) calendar days from initial hearing.
Section
3. Role
of Hearing Officer/s in Proceedings The hearing officer/s shall personally
preside in the conferences/hearings and, except as otherwise provided by law,
he/they shall determine the order of presentation of evidence by the parties,
subject to the requirements of due process.
He/they shall take full control of the proceedings, examine the parties
and their witnesses to satisfy himself/themselves with respect to the matters
at issue, and may allow the parties or their counsel to ask questions only for
the purpose of clarifying points of law or fact involved in the case. He/they shall limit the presentation of
evidence to matters relevant to the issue before him/them and necessary for a
just and speedy matters relevant to the issue before him/them and necessary for
a just and speedy disposition of the case.
Section
4. Presentation
of Evidence The party initiating the case shall be the first to present
his evidence to support his case.
Section
5. Extent
of Cross-Examination In the cross-examination of witnesses, only
relevant, pertinent and material questions necessary to enlighten the hearing
officer/s shall be allowed.
Section
6. Records
of Proceedings The proceedings before a hearing officer/s need not be
recorded by stenographers but the hearing officer/s shall prepare a written
summary of the proceedings, including the substance of the evidence presented,
in consultation with the parties. The
written summary shall be signed by the parties and shall form part of the
records.
RULE
15
PROVISIONAL
RELIEF
Section
1. Grounds
for Provisional Relief Upon the filing of an application, complaint or
petition or at any stage thereafter, a party to a case may, pending hearing of
the main case, file a motion seeking a procedural remedy, interlocutory order
or a provisional authority to operate or undertake any activity within the
jurisdiction of the
Department,
setting forth the remedy or relief prayed for and the grounds relied upon for
the grant of such provisional relief.
The motion must be accompanied by an affidavit of merit and other
supporting documents together with proof of service to the other party.
Section
2. Grant
of Provisional Relief The
Department
may grant or deny a motion for provisional relief, without prejudice to a final
decision on the matter. However, nothing
shall prohibit the
Department,
motu proprio, from granting any provisional relief to any party when
public interest so requires.
RULE
16
DECISIONS
AND MOTIONS FOR RECONSIDERATION
Section
1. Contents
of Decisions The decisions of the
Department
shall be signed by the Secretary and shall be clear, concise and include a
brief statement of the (a) facts of the case; (b) issue (s) involved; (c)
finding of facts; (d) applicable law or rules; (e) conclusion and reasons
therefor, and (f) the dispositive portion.
They shall be filed with the hearing officer/s who shall, within three
(3) days from receipt thereof, cause true copies thereof to be served upon the
counsel of the parties, or in the absence of any counsel of record, on the
parties themselves.
Section
2. Decisions
The
Department
shall render a final decision, order, ruling or resolution in accordance with
the following rules:
(a)
In Summary Proceedings. When summary
proceedings have been conducted, the
Department
shall, within ten (10) calendar days after the case has been submitted for
resolution, render a decision, order, been submitted for resolution, render a
decision, order, ruling or resolution on the matter.
(b)
In Contested Proceedings. In contested
proceedings where a formal hearing has been conducted, the
Department
shall render a decision, order, ruling or resolution within thirty (30)
calendar days after the case has been submitted for decision.
(c)
Grant of Other Relief. In all
decisions, orders, rulings or resolutions, the
Department
may grant such other relief or impose such terms as it may deem necessary in
order to promote public interest.
Section
3. Motions
for Reconsideration Motions for reconsideration of any order, resolution
or decision of the
Department
shall not be entertained except when based on palpable or patent errors,
provided that the motion is under oath and filed within ten (10) calendar days
from receipt of the order, resolution or decision, with proof of service that a
copy of the same has been furnished within the reglementary period, the adverse
party and provided further, that only one (1) such motion from the same party
shall be entertained. No pleading shall
be allowed other than the motion for reconsideration and opposition
thereto. The filing of a motion for
reconsideration shall interrupt the running of the period for filing an appeal
with the Office of the President.
RULE
17
APPEAL
Section
1. Appeal. Any party may appeal the order, ruling, or
decision of the
Department
to the Office of the President. However,
interlocutory orders cannot be the subject of an appeal.
Sec. 2. Procedure on Appealed Cases. In case of an appeal under the preceding
section, the following rules shall apply:
(a)
An appeal from an order, decision or ruling of the
Department
shall be perfected by filing with the
Department
a notice of appeal and with the Office of the President, within a period of
fifteen (15) calendar days from notice of such order, ruling or decision; copy
of the notice of appeal must be furnished all parties to the case;
(b)
Before an appeal will be filed it must be shown that a motion for reconsideration
from the order, ruling or decision has been filed with the
Department
and the same has been denied.
(c)
Upon the filing of the notice of appeal, the appellant shall pay with the
Department
an appeal fee of One Thousand Pesos (P 10,000.00), whereupon, the Department
shall act on the notice of appeal and shall transmit the certificate of payment
of the appeal fee to the Office of the President.
(d)
Appellants position paper shall contain the following data/matters:
1)
Exact date of the appealed order, ruling, decision;
2)
Exact date when the appealed order, ruling or decision was received by him;
3)
Information regarding compliance with the requirements for appeal under these
rules;
4)
Brief statement of the case and the facts;
5)
Reasons or grounds for appeal;
6)
Arguments in support of the appeal;
7)
Relief sought.
The
Secretary may require the filing of additional pleadings to provide additional
information.
e)
Any party filing the required pleading or documents and other pleadings
pertinent to the appealed case shall furnish the adverse party/ies, including
the
Department,
copies thereof.
Sec. 3. Effect of Appeal. An appeal shall stay the award, order or
decision of the
Department
unless otherwise provided by law, or the appellate agency directs execution
pending appeal, as it may deem just, considering the nature and circumstances
of the case.
Sec. 4. Appeal from the Order of the Secretary. The order of the Secretary in appealed
cases shall be appealable within fifteen (15) calendar days from receipt
thereof to the Office of the President of the Philippines.
Sec. 5. Execution of Order, Ruling or Decision of
the
Department. The order, ruling, decision, or resolution
of the
Department
shall become executory fifteen (15) calendar days after the expiration of the
period of appeal if no appeal is taken.
Sec. 6. Entry of Judgment. The judgment of the
Department
shall be entered upon finality, or fifteen (15) calendar days after the
expiration of the period to appeal, if no appeal is taken.
RULE
18
EFFECTIVITY
These
rules shall take effect fifteen (15) days after publication in the Official
Gazette or in at least two (2) newspapers of general circulation.
Fort
Bonifacio, Taguig, Metro Manila, July 31, 2002.
VICENTE
S. PΙREZ, JR.
Secretary
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